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Saturday, July 19, 2014

To mark the
release of the paperback edition of Professor Elizabeth Sheehy’s new book, Defending Battered Women on Trial: Lessons
from the Transcripts, we present this interview. Professor Sheehy is a full
professor at the University of Ottawa Faculty of Law and currently holds the
Shirley Greenberg Chair for Women and the Legal Profession.

B4E: Why did you decide to write a book
for a more general audience about the experiences of battered women on trial?

Professor Sheehy: I’ve been working on this issue for
many, many years, and I’d come to the conclusion that there is a lack of public
knowledge about the reality of battered women’s lives. There is a fair amount of
prejudice in the media and in popular culture, and I thought it was important
for the public to get some insight into the trials of battered women; to have a
sense of what the evidence was for and against the woman’s case, who the
witnesses were, and what the human costs are for battered women to go on trial.
I thought the best way to do that was to rely on the actual words of the
transcript. I took inspiration from Constance Backhouse’s Carnal Crimes book. She wrote Carnal
Crimes in a way that was accessible to the educated reader. I recall a
beautiful review of her book written by Janice Kennedy in the Ottawa Citizen that
made me think, I want to write a book like that!

B4E: What made you decide to profile these individual
women?

Professor Sheehy: I used a Social Sciences and Humanities
Research Council grant to purchase as many transcripts as I could. I had to aim
wide because there are cases in which battered women have evidence supporting
self-defence but it isn’t actually argued. Some transcripts didn’t go anywhere,
but a number of transcripts were very rich. I then had to choose among them. I wanted
to choose cases where there were additional sources that I could use to enrich
the story. There were some cases where I couldn’t find anything else about the
woman’s story – it wasn’t in the newspapers, there were no reported decisions,
so I didn’t have a lot to add to develop the depth or complexity of the story.

I also
wanted to portray a range of outcomes. I portrayed women who were convicted of
murder, women who were acquitted, and women who were convicted of manslaughter.
I also tried to be representative, in
particular when it came to the Aboriginal women’s trials. Five of the eleven
women I profiled are Aboriginal women, and that’s pretty close to the numerical
representation of Aboriginal women as they occurred in my files.

B4E: You speak quite a bit in your book
about the particular vulnerability of Aboriginal women.

Professor Sheehy: I was surprised to find that
approximately 40 per cent of my cases involved Aboriginal women who had killed.
I shouldn’t have been surprised. Aboriginal women are about ten times more
likely to be the victims of intimate femicide than non-Aboriginal women. They
also experience very high rates of intimate partner violence, as well as
stranger violence. In other words, it shouldn’t be surprising that they are
more likely to be in the life or death situation of kill or be killed.

I had to think
about why Aboriginal women are so vulnerable to male violence, and what
particular challenges they face in the criminal justice system. There is some
legal history in one of the chapters about how Canadian law is implicated in
producing the acute vulnerability of Aboriginal women to male violence, but I
also talk about the failure of the criminal justice system to respond to
Aboriginal women’s needs, in terms of when they report violence, when they ask
for shelter, when they ask for police response, and when they ask for emergency
response. We have a very poor record of assisting Aboriginal women in dealing
with male violence. There’s a phrase Kim Pate uses, which is that we basically
deputize them to defend themselves. There’s something quite cruel about bringing
the full force of the criminal law down on Aboriginal women when they have been
basically forced to deal with male violence without assistance.

One of the
particular challenges Aboriginal women face is finding lawyers who aren’t
simply going to plead them guilty. They need access to lawyers who are
committed and able to see the applicability of battered woman syndrome evidence
or other forms of expert testimony. They need to assist the woman in portraying
her vulnerability and her situation to a jury. A number of the Aboriginal women
I profiled had criminal records. This makes it more difficult for the lawyer to
put the woman on the witness stand in her own defence, so that’s another
particular challenge. There are also communication and other cultural barriers.
Aboriginal women often have difficulty communicating effectively with white
juries, for example, so we also have an issue with the under-representation of
Aboriginal peoples in our jury system, and in our courtrooms.

Another
thing that happens again and again is that Aboriginal women are portrayed by
the Crown as not “real” battered women. That’s a very pernicious pattern that I
saw. It’s interesting because in all of these cases there’s actually a great
deal of evidence about the woman’s experience of being victimized. The
prosecutor is arguing that she’s not a “real” battered woman because she fought
back, or because she was mouthy, or because she was assertive. That’s unfair
and prejudicial to Aboriginal women. There are files where prosecutors made
similar arguments about non-Aboriginal women, but over and over again it’s made
with respect to Aboriginal women. What’s particularly problematic about this is
that, in almost all of the files, Aboriginal women killed in the course of an ongoing
conflict. They are not the ones who kill men who are asleep or passed out.

B4E: The Supreme Court’s decision in Lavallee has had a significant impact on
the law of self-defence. Do you think that women get the benefit of what seemed
to be the promise of Lavallee?

Professor Sheehy: To my surprise, my research led me
to many more acquittals than I knew existed. I found 20 acquittals. There were
several other cases where the prosecutor either withdrew the charges or decided
not to go ahead with charges at all. That’s one positive impact of Lavallee.

The main
impact, though, seems to have been to facilitate guilty pleas to manslaughter. What’s
troubling about that is that the woman’s self-defence claims aren’t aired. A
manslaughter verdict is still a conviction. It still leads to a criminal
record, and the woman is at risk of imprisonment. There are so many negative
consequences for women who serve a jail term, but for battered women in
particular, it is an excessively harsh punishment to be sent to prison. The
woman has already survived captivity, and she is now being placed in a male,
authoritarian prison system, strip searched, and separated from her children.

My data tell
me that murder convictions after trial are very rare for battered women. In
fact, there’s no reasonable prospect of conviction in these cases. If there’s
good evidence that the woman was battered, jurors are not going to return a
guilty verdict on a charge of murder. They might convict the woman of
manslaughter, but they won’t convict her of murder. And that’s the basis for
the recommendation I made that Crown prosecutors should charge battered women
who kill with manslaughter.

B4E: What would you say to advocates who
are fighting for women to have meaningful access to self-defence?

Professor Sheehy: Women seem to be at very high risk
of confessing, and of being tricked into confessing by police, so it’s
important for defence lawyers to get to the police station as soon as possible
and to work toward securing their release. If you think about it, you’re
talking about a woman who has been battered by a male power figure. She is now in
the hands of several male police officers after a homicide. She is very
vulnerable to their authority, but also to their sympathy, and police officers
often play the sympathy card with battered women. So advocates have to be aware
that the dynamics are acute for battered women in police custody, and there’s a
real need to do whatever they can to protect them from police interrogation.

Defence lawyers would also do well to connect with advocates
who work with battered women. A murder trial is a long haul, and a battered
woman is unlikely to be able to get through it without the support of a battered
women’s shelter or feminist advocates on the front lines. These advocates can
also assist defence lawyers in seeing or hearing evidence that they hadn’t
perceived or been able to draw out from the woman. Obviously the lawyer is
still in charge of the file and has to make important decisions, but
collaborating with advocates who work with battered women would assist those
lawyers quite a bit, and assist the woman get to get through a trial rather
than plead out to manslaughter.

I also think that defence lawyers need to push the boundaries
of self-defence as a defence, and using the Charter,
including s 15, to do so. Defence lawyers are going to have to challenge the
mandatory minimums, because for battered women convicted of manslaughter with a
firearm, for example, there’s now a mandatory minimum sentence of four years. They
also need to think about the evidentiary issues. When judges make rulings
excluding potential witnesses, as I’ve seen them do, defence lawyers need to have
equality-based arguments ready and a way to incorporate Lavallee’s principles into evidentiary rulings. They need to
explain why it’s necessary to hear from a witness to give the woman the full
benefit of Lavallee, or to give her
equal protection of the law of self-defence.

B4E: What recommendations would you make
for reforming the law of self-defence and the way that violence against women
is approached in Canada?

Professor Sheehy: As I say in my book, I think our
law of self-defence is pretty fair, and the new law of self-defence is even
broader than the law I was using to analyze these transcripts. I think the main
challenges really lie in process and in access to justice. Battered women need
access to legal aid when they are charged with abusing their male partners.
Battered women accumulate criminal records by fighting back against their
abusers. Then when they’re on trial for murder, they have a criminal record. I
don’t think any province in the country provides legal aid for minor domestic
assaults by a battered accused where it’s unlikely that she will go to jail. I
think it should be a priority of the criminal justice system to give battered
women legal aid, so that they don’t have to plead guilty, so that we do hear their
self-defence arguments, so that that woman doesn’t get a criminal record, and
so that batterers aren’t further empowered.

We also need to do more to prevent battered women’s deaths. We’ve
done a lot for men, in the sense that we’ve reduced the numbers of men who are
killed by their female partners to approximately one per month. We know that
women’s shelters have gone a long way toward reducing men’s deaths. If you give
women an escape, you give them safety, and they’ve got an alternative to
killing to escape. What we haven’t done as well is reduce the number of women’s
deaths nearly as effectively. We have several provinces with domestic violence
death committees, but they don’t have a mandate to implement their recommendations
and no one has to respond to their recommendations. That’s an issue that needs
to be looked at – how can we use the knowledge we are gaining about intimate
femicide to prevent more deaths?

We also need better prosecutorial practices and guidelines. The
Attorney General should have policies that tell prosecutors to charge at the
level of manslaughter for abused women. There should be some restraints on the
kinds of arguments that prosecutors are able to make. They shouldn’t be allowed
to argue that a woman who has been abused is not a “real” battered woman. Being
a battered woman is not a moral claim; it’s a factual one.

Tuesday, July 15, 2014

Reproductive Justice NB has begun an effort to lease the
existing Morgentaler Clinic in Fredericton. The collective is in discussion
with the building’s owners to enter into a lease agreement and further explore
options to encourage family practitioners who support a person’s right to full
reproductive services, including the right to abortion. The estimate cost of
the lease agreement is $100,000.

While securing a lease agreement is a bandaid solution and does not
automatically mean New Brunswickers will have improved abortion access, it does
give the people of New Brunswick a fighting chance to access their rights under
the Charter of Rights and the Canada Health Act.

Every donation, however large or small, is one step closer to ensuring
reproductive choice in New Brunswick. Unless this oppressive regulation is
overturned, New Brunswickers will not have equal access to abortion services.
If Reproductive Justice NB is unable to raise the full $100,000, all money
raised will go towards renewed efforts to overturn the Medical Services Payment
Act.

Friday, July 4, 2014

The Federal Court today struck down cuts to health care for refugees awaiting determination on Canadian soil. You can find the full decision at the bottom of this article from CBC noting that the Federal government will appeal the decision.

Uottawa's own refugee hub, featuring students, staff and faculty, have played a vital role in advocating for adequate health care for refugees in Canada. Congratulations on your win!